R v Ellis, Craig Martin

[2017] NSWDC 318

District Court

New South Wales

Medium Neutral Citation:	R v ELLIS, Craig Martin [2017] NSWDC 318
Hearing dates:	13 and 20 October 2017
Date of orders:	20 October 2017
Decision date:	20 October 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [83].
Catchwords:	CRIMINAL – SENTENCE – two counts of misleading a judicial tribunal – one count relating to the Local Court of NSW and one count relating to the District Court of NSW – offences committed while the General Manager of the Shelley Beach Golf Club – no prior criminal offences – on two separate occasions intentionally concealed CCTV footage requested by police in relation to the prosecution and later civil proceedings launched by a patron who had previously been on the club premises – breach of trust not an aggravating factor – significance of mental health conditions that emerged after the offences – ‘extra-curial’ punishment – strong family support system – minimal discount for utilitarian benefit of plea of guilty on first offence – full discount for second offence – totality of sentence – special circumstances.
Legislation Cited:	Crimes Act 1900 (NSW) Liquor Act 2007 (NSW) Crimes (Sentencing and Procedure) Act 1999 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Einfeld v Regina [2010] NSWCCA 87 Iskander v R [2013] NSWCCA 235 Kearsley v Regina [2017] NSWCCA 28 Marinellis v Regina [2006] NSWCCA 307 Pearce v The Queen (1998) 194 CLR 610 Phanekham [2015] NSWCCA 295 R v Allpass (1993) 72 A Crim R 561 R v Engert (1995) 84 A Crim R 67 R v Hammoud [2000] NSWCCA 540 R v Malicki [2015] NSWCCA 162 R v Thompson and Houlton (2000) 49 NSWLR 383 Regina v Daetz [2003] NSWCCA 216 Regina v Giang [2001] NSWCCA 276 R v Rivkin [2003] NSWSC 447 R v Rivkin [2004] NSWCCA 7
Category:	Sentence
Parties:	Regina (Crown) Craig Martin Ellis (Offender)
Representation:	Counsel: Mr P Barrett (Crown) Mr T Watts (Counsel)
File Number(s):	2015/00341249
Publication restriction:	Nil

SENTENCE

1. HIS HONOUR: My practice is to tell people in advance what sentence I propose to impose. In your case, Mr Ellis, I propose to impose a total sentence of one year and 10 months' imprisonment. I propose to sentence you to a term of imprisonment that will comprise a non-parole period on my calculation of 10 months. The balance of sentence will be 12 months. Therefore you will be required to spend a minimum of 10 months in prison in relation to the offences to which you have pleaded guilty.

2. Sir Walter Scott in 1808 in a poem called Marmion wrote, "Oh what a tangled web we weave when first we practise to deceive". This matter involving the two offences to which the prisoner has pleaded guilty demonstrates the wisdom of Sir Walter Scott's observation. This is the case here. Craig Martin Ellis pleaded guilty in this court as I understand it in August 2017 to two charges on the indictment that was presented by the Crown. The first count alleged that he between the 13th day of October 2011 and the 9th day of May 2012 at Wyong in the State of New South Wales with intent to mislead the judicial tribunal, namely the Local Court, in a judicial proceeding, namely the prosecution of Bernard Nash suppressed or concealed closed circuit television footage knowing that it may be required as evidence in a judicial proceeding. This is an offence contrary to s317(a) Crimes Act 1900 and I am informed by the Crown carries a maximum penalty of 10 year

3. imprisonment.

4. The prisoner pleaded guilty to a second count alleging that he between the 16th day of September 2013 and the 18th day of October 2013 at Gosford in the State of New South Wales with the intent to mislead a judicial tribunal, namely a District Court in a judicial proceeding, namely a civil proceeding brought by Bernard Nash against the State of New South Wales suppressed or concealed closed circuit television footing and loyalty ledgers knowing that it (sic) may be required as evidence in a judicial proceeding. This is an offence contrary to the same provisions I earlier identified and has the same maximum penalty. At the time of pleading guilty to the two charges the prisoner had no prior criminal convictions. The prisoner had previously spent no time in custody.

5. In respect of count one this count was a matter that in general terms was prosecuted in the District Court in a trial by jury where the jury was discharged after approximately five days and I have been provided with a transcript of the proceedings of 20 June 2017 which sets out the basis for the discharge of the jury in that matter. The prisoner in that trial, as I understand it, had been arraigned in respect of a charge contrary to s319 Crimes Act 1900, a charge that carries a maximum penalty of 14 years' imprisonment with the s317 charge pleaded as an alternative. In respect of that matter I propose to provide the prisoner with a discount of 5% upon the otherwise appropriate sentence to reflect the utilitarian benefit for the plea of guilty. There is some utilitarian benefit, although slight, bearing in mind the prisoner was committed for trial and there was in fact a trial conducted until the time the jury was discharged. That having been said of course he was prosecuted in respect of a more serious offence and an offence, in the alternative, to which he ultimately pleaded guilty. It should be observed of course that he had the opportunity to plead guilty to the alternative charge on arraignment even if the Crown was not prepared to accept that plea of guilty in discharge of the indictment. In relation to count two, however, he was in fact committed for sentence in relation to that matter. But the matter committed for sentence was added to the ultimate indictment that was presented for administrative conformity. For that plea entered at the first reasonable opportunity the prisoner receives a discount of 25% upon the otherwise appropriate sentence to represent the utilitarian benefit of that plea of guilty in accordance with the guideline judgment of the Court of Criminal appeal of Thomson and Houlton.

6. The prisoner was born on 26 April 1971. On my calculation that makes him now 46 years of age. As I understand it he was 40 years of age at the time of the commission of the first offence and 42 years at the time of the commission of the second offence. When the offences were committed he was the General Manager of the Shelley Beach Golf Club. The first count in the indictment is a count concerned with judicial proceedings involving a person called Bernard Nash that were ultimately heard on the 18 May 2012 at the Local Court. I am informed in the Agreed Statement of Facts that Mr Nash was being prosecuted on that date in respect of charges of driving under the influence and resisting an officer in the execution of his duty. He was acquitted in relation to those charges although the tampering of evidence of the prisoner apparently played no role in his acquittal, at least directly. Indirectly of course it did because by not providing the material that was sought by police affected the prosecution of the accused man Nash. The Court was denied evidence that it may have taken into account in order to determine beyond reasonable doubt at least the guilt of the offender in respect of the offence of driving under the influence of alcohol.

7. Count two relates to judicial proceedings involving Mr Nash suing the State of New South Wales in respect of claims of wrongful arrest, assault, and malicious prosecution by the New South Wales Police Force arising from his arrest for the Local Court matters. Those proceedings were ultimately heard at the District Court at Gosford on the 10th and 12th November 2014 and Mr Nash received a verdict in his favour and a substantial sum of damages in 2015 which I will particularise later.

8. This affair all started on 13 October 2011 when Senior Constable Michael Hicks, who gave evidence before me, and who at the time was attached to the Tuggerah Lakes Highway Patrol stopped Mr Nash or sought to stop Mr Nash after he was seen exiting the Shelley Beach Golf Club. Mr Hicks pursued Mr Nash's vehicle "for the purpose of conducting a random breath test". I am denied in the material tendered as to what precisely happened thereinafter except I am informed in the Agreed Statement of Facts that Mr Nash was ultimately issued a Court Attendance Notice to appear at Wyong Local Court for the offences for which he was ultimately prosecuted in the Local Court.

9. As I understand it the Senior Constable attended on Shelley Beach Golf Club to try and obtain CCTV footage relating to Nash's presence in the club and the alcohol he had drunk. The club had an extensive CCTV camera system with nine cameras throughout the club. The Operations Manager, Sharyn Kennedy, said she would look for the footage and provide that to the police. Ms Kennedy then discussed the matter with the prisoner. The Statement of Facts indicates that on 21 October 2011 a woman called Katy Seaman sent an SMS message to the prisoner indicating that Mr Nash was on his way to see the prisoner. The message conveying what Mr Nash had said, which of course cannot be attributable to the state of mind of the prisoner, included the statement "Said ud know whats its regarding (sic)"

10. On 17 November 2011 Ms Kennedy emailed to the prisoner a link in which CCTV footage was included that had been saved which showed Mr Nash being given schooners of beer to drink at 3:53, 4:10pm, 4:27pm, 4:48pm, 5:12pm, 5:34pm and 6:03pm on the 13th October. When Mr Hicks returned to the Shelley Beach Golf Club to recover the CCTV footage that he had requested he was told that the footage had been provided to the prisoner and that the footage would not be released until a form of written request was made.

11. I have an exhibit that was at the trial, signed by Mr Hicks, dated 24 November 2011 in the following terms:

“To the Licensee/Secretary Manager

I am officially placing a form of demand upon you as the Licensee/Secretary Manager to supply to me the following information.

This form of demand is in accordance with s110 of the Liquor Act 2007 - s58 of the Registered Clubs Act.

The information is required in the investigation of the following offence - permitted intoxicated person.

The required information/documents are:

Video footage from 5pm on 13 October 2011 to 7pm on the 13 October 2011 covering the location of: All areas of the interior of Tuggerah Lakes Golf Club around the bar area and the car park".

12. As I understand it this letter was somewhat of a ‘fiction’. It is clear on Mr Hicks' own evidence and the Statement of Facts that the material was being sought in relation to the prosecution of Mr Nash and frankly this material should have been sought by subpoena. Be that as it may the tone of the letter set in motion a course of events that ultimately led to the commission of the offence, but in circumstances that in my view are reflected in the evidence given by the prisoner.

13. The prisoner on 21 December 2011 sent an email to Ms Kennedy indicating that if there was a request for individual files that it should be by subpoena or "at least a formal written request". Most importantly, he instructed Ms Kennedy to "give them entry, exit, and first three purchases". He must have known at the time of sending that email that there was in fact evidence of other purchases of alcohol by Mr Nash. The Statement of Agreed Facts stated the prisoner edited a version of the CCTV footage and ultimately Mr Hicks was, as I understand it, given that version that contained in this edited footage views of Mr Nash obtaining drinks at 3:53pm, 4:27pm and 5:34pm. The footage also showed Mr Nash entering and exiting the Shelley Beach Golf Club. At this point of course the prisoner must have known Mr Nash was being prosecuted in relation to offences or an offence relating to control of a motor vehicle committed on 13 October 2011.

14. Subsequent investigations by the police at the scene through telephone intercepts and other means revealed conversations the prisoner had in 2015 making admissions about his knowledge of the matter and it reflects on the part of the prisoner some antipathy towards the police officer who was endeavouring to investigate this matter in accordance with his certain responsibilities. He said inter alia in one conversation "I didn't give him what he needed for his conviction". Senior Constable Hicks copied the USB stick and apparently provided that to lawyers representing Mr Nash. The matter was heard at the Wyong Local Court 18 May 2012. Mr Nash gave evidence on the basis that, on the video evidence, was clearly untrue and the charges were ultimately dismissed.

15. It would seem based upon the evidence given by the Senior Constable before me that the USB stick was not produced in evidence. There was some dispute between the Senior Constable and apparently the Prosecutor as to what actually happened to it. But no fault can be attributed to the Senior Constable for that matter although I obviously cannot ascribe any fault to the Prosecutor at all in the circumstances of that dispute in these proceedings.

16. Mr Nash wrote to the prisoner in a text message sent to the prisoner "SBGC (Shelley Beach Golf Club) and Bern one. Lying fuckin' cop nil". Thus the prisoner would have been aware of the outcome of proceedings. The USB stick that was handed to the Senior Constable has never been recovered. Again a telephone intercept of a conversation reveals the prisoner made an admission about deliberately not giving Senior Constable Hicks the material that was requested.

17. Subsequently, after Mr Nash had commenced civil proceedings in the District Court to which I earlier made reference, the prisoner received a subpoena addressed to the "Proper Officer" of the Shelley Beach Golf Club, which I take to be the prisoner, from the legal representatives for the State of New South Wales calling for him to produce relevant CCTV footage of the club on the 13th October 2011 and any documents or information relating to a Bernard Nash which would include any registers kept of any benefits he received from the club on 13 October 2011. Mr Nash in fact on 17 October 2013, the subpoena having been issued on the 16 September 2013, sent an SMS message to the prisoner in these terms:

“Hi Craig. The date was 13 October 2011 U just want to make sure everything tallies. Thanks Bernie”

18. Clearly that text message is alerting the prisoner to the date and the need for the prisoner to accord with what he had evidence previously done to commit Count one. The prisoner answered the subpoena produced by the State of New South Wales and took responsibility for what was produced however again he produced edited CCTV footage. It showed the man Nash obtaining alcohol, that is beer, at 3:15pm, 4:10pm, 4:27pm. Those times were at odd with the original footage provided to Senior Constable Hicks. The footage also showed Nash entering and exiting the Shelley Beach Golf Club. That exhibit became Exhibit H in the District Court proceedings. So in fact it was produced in the proceedings.

19. He also produced written records relating to Nash's attendance at the club including what was called "a membership Ledger Activity" record relating to all of the consequent purchases. In respect of this matter the prisoner admitted or conceded knowingly a number of purchases that had been made on that date were excluded from the ledger. The police subsequently were able to obtain the full ledgers which showed the true number, or at least a larger number, of purchases of full strength beer by Nash on 13 October 2011.

20. Her Honour Judge Gibson of our court on 10 June 2015 found in favour of the Plaintiff, Mr Nash, and ordered the State of New South Wales to pay him $124,958 in damages and also to pay Mr Nash's costs. Subsequent to that order of the court, again in November 2015, the prisoner's conversations with the Operations Manager, Ms Kennedy, were recorded. He expressed the fact that he was not disappointed that "Bern" did not get fined for drink driving because he "knew" (knew) he had a few beers". He went on to say "But I'm not disappointed that that didn't get through. I'm so disappointed that some magistrate decided it was appropriate to give him a big friggin payout". That is common slang. What those comments mean were not fully explained by anybody. The Crown case in relation to count two is that the prisoner responded to the District Court subpoena with amended material intending that the Judicial Tribunal, that is the District Court, would be misled and he did so knowing there were civil proceedings on foot in the District Court.

21. As I said Senior Constable Hicks gave oral evidence and some of the history of his involvement and much of that evidence duplicated what was in the agreed facts. The consequences of the actions of the prisoner, particularly a letter of complaint, he wrote apparently to the Local Area Commander or some senior officer on or about 6 February 2012. The Senior Constable was the subject of an internal investigation which was not appropriate given the true facts of the case. He had not been responsible for any serious wrong doing. The Senior Constable was not suspended nor should he have been.

22. As I said it was unfortunate the way in which the request for the material that was made was in the form of what was in effect a "fiction". As I said that material should have been in due course the subject of subpoena and produced to the court controlled by the court and not just handed over to people in the manner in which it was. He confirmed in his evidence what I have earlier indicated that as far as he was aware the recording was not played in the Local Court proceeding and he had no control over that. I accept his evidence the footage was given to the Prosecutor but again what happened to it is of no moment here.

23. The prisoner also gave evidence about the facts of the matter. I should point out in passing that I had regard to all the submissions, both written from the Crown and oral from the Crown and accused's counsel, concerning both the factual issues to be decided and other matters relevant for sentencing. I accept on the prisoner's evidence that whilst he must have met Mr Nash and must have known he was being prosecuted in relation to his management of a motor vehicle he does not have a clear memory of their meeting or their discussion.

24. Although there seems to be some friendliness in the communications with Nash and the prisoner I accept his evidence that Mr Nash was not a personal friend of his. I would understand the General Manager or Secretary Manager or managers of such a club would need to be friendly with all members. He agreed that he had made up his mind not to hand over the full material that was being sought by the Senior Constable by late September 2011 although the actual provision of the edited footage was not provided until February because of the Christmas break and other delays.

25. It is the case, I accept, that the prisoner's interest in the matter as a result of the letter written by Senior Constable Hicks on 24 November 2011 became one where he conflated Mr Nash's interests into the concern he had about the reputation of the club. The prisoner had nothing to gain directly by helping Mr Nash in the Local Court and there was no suggestion of him being paid any money to edit the material. He had nothing to gain in terms of the financial benefit or any other direct benefit, apart from his own self-protection in assisting the conduct of the District Court proceedings by Mr Nash.

26. Although I accept that in relation to count one that his primary concern in respect of his actions was the protection of the reputation of the club thinking that the Nash incident might cause a ‘black mark’, as he described it, being made against the club this was substantially misguided and seriously wrong thinking on his part. I point out he had an obligation as the General Manager to co-operate with police on purported licence enquiries, particularly if they claimed to be conducting an investigation. Although I note he gave evidence about legal advice he had sought concerning the character of this investigation and as I understand his evidence the club had a spotless record which he was very anxious to protect.

18. Misleading the investigation for the benefit of his employer it must be said is only marginally less serious than misleading a court, although it may not necessarily lead to a criminal charge. He must have known, however, in providing the footage to the Senior Constable in due course that the material was used or could be used for court purposes. He must have also known, one would have thought, that if it was favourable to Mr Nash it might end up not being used in the prosecution of Mr Nash. Although I do note in fairness to Senior Constable Hicks that he attended upon the officers of the solicitor of Mr Nash and apparently provided a copy of the material to the defence well before the hearing which is entirely proper. The Prosecution has a positive duty to provide all relevant information to the defence to ensure no miscarriages of justice occur and that is very much to his credit.

19. As he was responsible for the stewardship of the club the prisoner would be judged on its performance so it is to be fairly said that he had something to gain indirectly by protecting the club's reputation. He was responsible for its reputation and if the Nash incident reflected mal-practice by the club to discharge its obligations then the prisoner was accountable for that. In making himself accountable to my mind he had an obligation to reveal the truth of the situation and apply the responsibility that he himself had in this regard. That having been noted I accept that he had worked very hard to build up a reputation at the club and he had been involved in providing ambitious plans for development of the club. I had actually been to the club on one occasion. I have a friend who lives nearby and is a member and it is to be fairly said, although I was there only a few years ago not long after the prisoner had left its employ, it appeared to be a fine club indeed.

20. I accept his evidence that the criminality involved in count two, which is obviously more serious for reasons put by the Crown, arose from the fact that he was fearful that his earlier misconduct not be uncovered and was primarily seeking to protect himself. The reputation of the club no longer was an issue. It should be noted what makes his conduct in relation to the second count more serious as well was the fact that there were two acts involved in the criminality, both the editing of the CCTV footage and falsifying the ledger records of the club. He was trying on his own admission in relation to count two to protect himself and this attitude on his part compounds the totality of his criminality. As I said he knew by 2013 that the reputation of the club was not at stake, just his own. It was a serious failure of judgment and character to do what he did. I accept that despite the time over which this conduct occurred and separate criminality over a period of almost two years the conduct of the prisoner was entirely uncharacteristic.

21. He may have seen himself, of course, in relation to count two of having what is described as ‘Hobson's Choice’, or ‘Sophie's Choice’, in a sense. But the truth is he chose badly and wrongly.

22. I note in this regard as is relevant to this sentencing exercise and sequelae of the misconduct, and properly so, has been the termination of his employment. He obviously has had to leave his employment in disgrace. He was given a modest pay out in total of $5000. This, of course, would be damaging to any future opportunities he may have in the industry because of his reputation. There has been a substantial loss of reputation and, correctly, a loss of employment, financial benefits and cost accordingly.

23. To turn to some aspects of the submissions in relation to the assessment of the seriousness of the offending the Crown referred me to some authorities. In Reid [2016] NSWCCA 151, that particular offender, if my memory serves me correctly a respondent in a Crown appeal, had been prosecuted pursuant to s319, a more serious offence than an offence under s 317 I note the observations of the court at [40-[44]. Apart from any matters of general principle in Reid about offences of this kind the Crown called in aid Reid in respect of comparative sentencing purposes. Although of course comparative sentencing for offenders where they are committing different offences is a problematic area.

24. The Crown also referred me to the decision of Malicki [2015] NSWCCA 162, particularly at [60], which emphasised, although again concerned with different offending, the seriousness of offences involved with misleading courts. The court system depends upon the honesty of people, particularly practitioners, of course, but also litigants who come before it and those seeking to support litigants by either production of documents or evidence. In Malicki there was a reference to other judgments, Marinellis [2006] NSWCCA 307, I particularly note the observations at [8], and an earlier decision of Giang [2001] NSWCCA 276, where in that judgment, particularly at [27] it was adopted by the court the expression that in public justice offences of this type there was a need to impose a sentence in the appropriate case that "hurt significantly". Particularly in that case where an offender sought to benefit from his dishonest conduct which is not as much an issue in this case as it was in that case. I should also note in relation to Reid the issue of personal benefit was very much in the forefront.

25. Another authority I was not referred to but a very important authority in this regard is a decision concerning Marcus Einfeld, (Einfeld [2010] NSWCCA 87). Of course the former Federal Court Judge was prosecuted in relation to offences of perjury and under s319 which are more serious offences than those with which I am concerned here. Although they are serious enough. I note the observations at [81]-[83] in Einfeld. In those observations the Court made the point that offences of this type are more serious where a person who has the full understanding of the law and the operation of the law and has obligations and responsibilities not only to uphold the law but to act honourably in the execution of any conduct in relation to activity is to be considered more serious misconduct. In relation to the matter of Einfeld I will come back to that, because there is some discussion in that judgment too about "extra curial punishment".

26. I mentioned earlier the prisoner had no prior criminal convictions. I have a body of material that has been provided by the prisoner in addition to his evidence. I have a psychological report from Ms Fleur Taylor who works for a practice called LSC Psychology. That report is dated 18 September 2017. Ms Taylor is a registered psychologist, not a medical practitioner. But she is a member of a practice the principals of which, Dr Lenning and Dr Siedler, are well regarded by the courts as people of integrity. Much of the history provided in the report I accept. The prisoner gave evidence in relation to matters of personal history that were not challenged at all to any degree and much of his history is confirmed by the references that have been tendered and admitted without objection.

27. I note the background of the prisoner of some family dislocation. The prisoner's natural father, it would appear, abandoned the family and had been responsible for mis-conduct towards members of his family which I need not state in open court. The prisoner had a very close attachment with his mother and it would appear also has a close attachment with his stepfather whose surname he adopted. He also has a close attachment to his full brother and sister and I have a number of references from his siblings and other people stating their support and speaking of his character.

28. The prisoner has a settled family relationship. He has one child of his marriage who is aged 15 and he has two step-daughters aged 23 and 20. He has been in this relationship with his wife for 20 years and it is a positive relationship, a ‘pro-social relationship’ might be another way to describe it. His family continue to support him and he has strongly supported his family with his industry over the years. The report sets out his academic achievements. He completed a Science Degree at the University of Sydney. He then commenced a Masters of Environmental Law but became disenchanted with that and took up a traineeship in the club industry. He obtained a Masters in Business Administration during his traineeship and he also completed a Graduate Diploma in Applied Corporate Governance in 2014, after the commission of the offences with which I am concerned. He had a "long term and stable employment history" and as I understand it had worked at the relevant club over a period of eight years. He took his responsibilities "seriously" and had reported wrong doing on the part of staff to the authorities in the past. Generally speaking, he had "high moral and ethical codes" which completely abandoned him, or he abandoned them, in the commission of these offences. The report sets out the history of the development of the club which I have already referred to and also denotes the termination of his employment.

29. Since the termination of his employment he has established a garden maintenance business and this apparently has worked well. I am sure his industry and his flair would assist him in developing that work although certainly it would not be as remunerative as working as a General Manager of a club. He has some history of past use of cannabis but does not have any drug addiction issues and is a moderate drinker of alcohol. He was apparently drinking heavily over the period of the offending behaviour but that is not really a matter of relevance in this offending. He has given some history of treatment for depressive symptoms in 2012 and was supplied with a prescription of antidepressants. He has had continuing symptoms since that period of time and some deterioration in his "mental health". He has had some past history as a child of treatment for cerebral meningitis and has had symptoms of anxiety since he was a child. He said to the psychologist that at the time of the offending he was under a great deal of pressure relating to his work and the responsibilities there led to some financial pressure that had arisen because he and his wife had gone into a collateral business venture that was unsuccessful. He has had some periods of depressive symptoms that have affected his enjoyment of life in various ways, as is not infrequently the case in people with heavy responsibilities.

30. I have got details of his history in relation to his use of antidepressant medicine. The psychologist opined that "considering his past and current symptomology it is (her) opinion that the prisoner is suffering from symptoms consistent with diagnoses of Generalised Anxiety Disorder and Major Depressive Disorder in accordance with the criteria of DSM 5 (The Diagnostic and Statistical Manual of Mental Disorder)”. I will come back to that assessment in a moment. There was some psychometric assessment made of his personality. Amongst other things it notes a decline in self-esteem which would follow his charging. He is a person who is somewhat self-critical and uncertain and sometimes indecisive. However his inter-personal style seems best characterised as being "domineering and able to control". He seemingly "has a strong need to control others and expects respect and admiration". The psychologist noted that it is the case that others probably view him as "rather over bearing and dictatorial", qualities probably well suited for a person trying to run licensed premises. It notes his positive relationships and makes comments upon his reasons for committing offences. I have already dealt with that aspect of the matter on the evidence the prisoner has given.

31. The formulation of the matter is that the prisoner is a person who over the years has had various symptoms of anxiety and depression. He has sought to obtain help in relation to this matter it would seem not until 2012 and he has suffered some deterioration in his "mental health" because of his reaction to the circumstances in which he finds himself which are both financial and, of course, relate to the fact that he faces a term of imprisonment.

32. The psychologist makes some recommendations in relation to his treatment, if given a custodial sentence. There would be a psychologist to assist him in the difficult adjustment to custody and to assist him in adapting to his new environment and beyond. He should have counselling on his release from custody.

33. I have, as I have said, a number of references from siblings and/or people that are related to the prisoner by marriage and also a reference from a neighbour. The family members speak highly of his industry and his achievements, his positive qualities. As a member of the family he is a supportive brother to his siblings and a supportive child, particularly to his mother. His brother, whose name I have no need to put on the record, has advised me that he is a Commander in the Royal Australian Navy with 24 years of service and obviously is a man of considerable respect within the community. He has known the prisoner obviously all of his life and noted his passion for his family and his work and how hard work has driven him over many years.

34. He said that he thought that the prisoner's "reaction to the situation" he found himself in was very much reflected in his deep investment in his workplace and his family. In part that may be correct in relation to count 1, but has little weight in relation to count 2. He says that the prisoner is contrite and accepts that he has done the wrong thing. The prisoner's stepfather has also provided a reference and speaks positively of his qualities and what a credit he has been to his family.

35. His medical practitioner has been treating him for 16 years. He believes the offending that he has admitted is a "paradox" and has affected him severely from an "emotional perspective". He has been treated for both "depression and anxiety" during the past four years as well as organising his psychological support. This letter provides support for some of the history that has been provided to the psychologist.

36. His brother-in-law has written a positive reference of the prisoner's qualities both as a family member and as a member of the community. As has a neighbour who speaks of the prisoner's contribution to the community in a range of ways, his support to the neighbour's family when their child was diagnosed with leukaemia and the way in which he has provided, for example, the facilities of the Shelly Beach Golf Club when he was the General Manager to assist in community matters and fundraising for his daughter's treatment. He identifies the prisoner, again as everyone else does, as industrious, driven, passionate and loyal.

37. What emerges from all of this material is the prisoner is a person who is driven to success. Perhaps he may have in some aspects of his personality a "take no prisoner's attitude" and that to some extent is reflected in his communications with people in respect of his offending behaviour. Particularly in communications with his staff, to which I have referred. But it is to be fairly said that he has succeeded up until his fall from grace with discipline application and considerable industry.

38. I have already noted that he has very strong family support and overcome a number of difficulties to rise to the position that he reached. It was, however, a position of trust that he had as General Manager of the club. It may be said that he allowed his personal investment in the club to distract his attention from the usual standards of honesty and probity, which earned him his reputation and career.

39. It might be said in this context to be some element of a "breach of trust" that is the trust put in him by the Directors of the club and its members to conduct the club's affairs honourably. But ultimately I do not conclude that breach of trust is such as an "aggravating factor" arising under s 21A(2) Crimes (Sentencing Procedure) Act 1999, which I will hereafter refer to as "the Act".

40. To come back to the psychologist's report the Crown took issue with the "diagnosis" to which I have referred. I do not see it as a "diagnosis". The report states a history of the symptoms consistent with particular conditions that fit the constellations of symptoms that would be identified in the manual ‘DSM-5’, which psychologists cite regularly in their report. I accept that the history provided by the prisoner, the short report from the medical practitioner, the prescription of antidepressant medication, stand consistent with the symptomatology identified by the psychologist.

41. Of course, much of the subsequent symptomatology since his arrest in relation to the matter giving rise to count 1 would be seen as a reaction to his current legal difficulties which would, of course, be greatly troubling to a person who is by nature not lawless or antisocial. He has never had any conflict with the police or been in gaol. There is, in my view, no evidence of causal connection between his conduct in 2011 to 2012, which is the foundation of subsequent events, and any symptomatology reflected in the report or the histories provided by the prisoner.

42. There was in fact no particular submission made that there was such a causal connection established. As I have said the history does not suggest any particular treatment until 2012. That is it would seem after the commission of count 1.

43. The principles relating to the sentencing of a person who can be found on the evidence to be suffering some form of mentally disability, disorder or illness were summarised by the then McClellan CJ CL, in DPP (Cth) v De La Rosa [2010] NSWCCA 194 at [177]-[178]. I do not propose to recite them. His Honour by surveying a number of authorities, including some authorities I will refer to in a moment, reflected on the existence of a mental condition or disability reducing, in the appropriate case, the person's moral culpability and may reduce the weight required for general deterrence, although where it is causally connected it may increase the weight to be given to personal deterrence.

44. Assuming the development of the symptomatology, particularly from 2012, it would seem that anxiety depressive symptoms may have somewhat been contemporaneously connected to the events in count 2. But the prisoner in his account does not claim any direct connection, except of course the anxiety caused by fear of exposure of his earlier misconduct relating to count 1.

45. Where there is evidence of a mental condition, which does have not have to be severe as McClellan CJ CL pointed out in De La Rosa , at [178], it still remains relevant to the sentencing process, even if it is one that has developed subsequent to the offending.

46. In the decision of Engert (1995) 84 A Crim R 67 particularly at [71] the then Gleeson CJ said that:

“Even if the condition was not causally connected to the offending it may still result in some reduction of sentence, all a matter of degree."

56. For example, in consideration of matters of rehabilitation or the need for treatment outside the prisoner system. There are a number of other decisions that discuss the presence of a mental disorder or the symptoms of a mental disorder that are not causally connected. There is the decision of Iskandar [2013] NSWCCA 235 particularly at [23], [27]-[30]. This was a particularly strong bench, President Beazley, RA Hulme J and Bellew J. That judgment, the sections that I have referred to, noted that even where a mental disorder or mental condition was not causally connected it may still be a matter relevant to the weight to be given to general deterrence, but depending upon the particular circumstances.

57. Another decision is Phanekham [2015] NSWCCA 295, particularly at [4], which adopted the dicta in Iskandar.

58. A more recent decision is that of Kearsley [2017] NSWCCA 28, particularly at [4]-[8]. That case cited the observations of Gleeson CJ and in the same case the observations of Allen J, as he then was. Justice Allen had noted, which the Court approved:

“Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: ‘Well, you would not expect him to get the same sentence as someone else’. (Engert at 72)."

59. It should be pointed out in Kearsley, whilst adopting that observation, their Honours said in that particular case ordinary members of the community would not have been expected a person suffering from a depressive condition of the kind that Mr Kearsley suffered to receive a significantly lower sentence for the offences of the type in question, than would otherwise be the case. General deterrence remained of significance when re-sentencing Mr Kearsley.

60. So is the case here, in my view. His mental state is a matter to be taken into account both in the consideration of his rehabilitation and in consideration of his offending relevant to count 2, but it is not a matter of great significance in terms of diminishing the weight to be given to general deterrence.

61. In that regard I note the terms of s 3A of the Crimes (Sentencing Procedure) Act, the purposes of sentencing. I am required to ensure that the prisoner is adequately punished. I have got to prevent him and other from committing similar offences. I do not believe there is a need to protect the community from the offender and I am required to promote his rehabilitation, to make him accountable for his actions and to denounce his account.

62. I must note in relation to this matter, particularly in respect to count 2, there was harm to the community in that the State was required to defend an action that was inappropriate and ultimately was ordered to make a payment of costs as well as damages to Mr Nash, which I assume will be taken away from him in due course. But through no thanks to the prisoner.

63. So far as matters arising under s 5 of the Act are concerned obviously in this matter there is no other penalty that can be imposed other than a term of imprisonment his counsel conceded that. His counsel's submissions were that I should impose a term of imprisonment, but which in total would permit consideration of the suspension of the terms of imprisonment and/or a performance of an Intensive Correction Order.

64. It would be clear from the sentence I foreshadowed to the prisoner that those options are available bearing in mind I have determined upon the total sentences which does not exceed two years. But, in my view, the imposition of a sentence other than imprisonment would not give full weight to the matters, particularly identified by the learned Crown Prosecutor, concerning the weight of general deterrence.

65. So far as s 21A(2) of the Act is concerned I accept some submissions of the Crown. Although I anticipated the Crown's submissions, I believe. Because I discussed the matter with counsel for the prisoner before I had even read the Crown's submissions. The prisoner was a person of good character at the time of the offence reflected in count 1. The weight to be given to good character in relation to count 2, however, is diminished because of the time of the commission of count 2 the prisoner was an undetected offender in relation to count 1 and the commission of count 2 is very much connected to his conduct in respect of count 1.

66. Whilst he was not of such good character at the time of commission for count 2 for the reasons more eloquently I believe set out in the Crown's written submissions, that does not mean, of course, that good character has no weight in relation to count 2. One has to look at the whole of a person's life. As I have earlier pointed out the conduct I am concerned with is uncharacteristic and there cannot be any suggestion of the prisoner being blameworthy in any particular respect before his involvement in these offences. Good character is still relevant in relation to count 2. But not of as much weight as in relation to count 1.

67. The Crown submitted there was planning involved in the offences. However, as that expression is understood by the superior courts in relation to s 21A I concluded that the offences were not part of "planned or organised criminal activity". At the time of the commission of each offence he had no record of criminal convictions, as I have pointed out he was effectively un-convicted at that time in relation to count 1 when he committed the offence in count 2.

68. I accept he is unlikely to re-offend. I believe this matter will be a salutary experience. I believe in all the circumstances he has excellent prospects of rehabilitation. He has demonstrated that by his past conduct up until the time of the commission of count 1; and also in his industry since he lost his employment.

69. I can find no evidence of remorse in relation to count 1. Admittedly he was defending a more serious charge, in part, but his conduct in relation to count 1 has to be considered in light of his reaction almost two years later in 2013, thus giving rise to the criminality in count 2.

70. Remorse or contrition of a person who runs over a child in the street, jumps out of the car, expresses immediate regret and seeks to provide aid, even though he or she may have committed a criminal offence, is truly evidence of remorse and contrition worthy of great weight. While in this matter whilst the prisoner has expressed regret for his conduct in count 1 the Crown, very fairly, acknowledges that is the case. But it is not a matter where one could conclude that a mitigating factor is established of remorse in respect to count 1 pursuant to s 21A(3)(i) of the Act.

71. However, I am prepared to accept that he is relevantly remorseful, that is he has taken for full responsibility for his conduct in relation to the matters giving rise to count 2. I find that as a mitigating factor in respect of that count alone, his pleas of guilty are themselves mitigating factors.

72. There are two offences I am required to sentence the prisoner on the totality of the criminality. The High Court Australia in Pearce v The Queen (1998) 194 CLR 610, particularly in the majority judgment at [45], reflected upon the need for transparency in sentencing and thus in sentencing for more than one offence an appropriate sentence for each offence and thus turn to the issue of occurrence and/or accumulation, or partial accumulation, to reflect the totality of the offending.

73. What was decided in Pearce has been reflected upon by the Court of Criminal Appeal in quite a number of decisions, one leading judgment in this regard is one of some age of Simpson J in the 2000 decision of Hammoud, but there are many authorities that deal with the requirement of a Judge to give full effect of the totality of criminality. I have endeavoured to do that by making the sentence in relation to count 2 partially accumulative upon the sentence in relation to count 1.

74. By definition from what I have said, even allowing for fact that there are some mitigating factors in relation to count 1 that do not apply in relation to count 2 and vice versa, the criminality involved in count 2 is more serious than the criminality involved in count 1. Because there is no standard non-parole period I am not required to be trying to fit some matter within the rubric of the "middle range of objective seriousness". In the scheme of conduct, however, that s 317 contemplates, having regard to the personal circumstances of the prisoner, that is the lack of direct personal benefit and the various matters I have taken into account as objective facts I would regard the criminality in relation to count 1 as not at the lowest end but at a level, to come back to the standard non-parole period argot, of well below the middle range of objective seriousness.

75. In relation to count 2 that is more serious conduct, perhaps by reference to that ‘argot’, at the cusp of the lower level of the middle range of objective seriousness. I again make the point that if this sort of conduct was performed by a solicitor or a barrister one would expect - to use the Crown's words - "condign punishment". The most severe punishment to be imposed upon that person. Likewise a police officer who tampered with evidence in procuring a conviction of somebody for a crime that they did not commit, with respect, would be "condign punishment" to which the Crown referred in his written submissions.

76. There is some element of extra-curial punishment to be considered. I am mindful of what of what was discussed in Einfeld, particularly at [87]‑[97]. The Court at [88] reflected upon the judgment of Whealy JA in sentencing René Rivkin [2003] NSWSC 447, which is cited at [88]. It was noted in Einfeld that the statements of Whealy JA were not the subject of adverse comment on the appeal of Rivkin (see Rivkin [2004] NSWCCA 7 particularly at [411]-[412].)

77. I am mindful, of course, that where reputations are lost and considerations of extra-curial punishment arise that there is an element of "double counting" that might arise. Their Honours said it thus:

“Loss of good standing in the community may readily give rise to an element of double-counting if the offender is also given favourable consideration for his or her prior good character taking into account of the economic consequences (including loss of employment) which inevitably follows from imprisonment may mean that those previously in employment will serve shorter sentences than those who are unemployed.”

78. Their Honours noted that, however, in the context of what had been said by Whealy JA, the loss of opportunity arising from one's conduct in the future and an economic loss that would follow from that would be seen as a category which had "extra-curial punishment". I appreciate of course their Honours discussed the fact that "extra-curial punishment" had taken on a wider meaning since, for example, the decision in Daetz [2003] NSWCCA 216.

79. If my memory serves me correctly in relation to Mr Daetz he was alleged to have assaulted a man's daughter as he was leaving the police station. The man came in and broke his jaw to revenge himself on the alleged misconduct towards the daughter. Be that as it may that is a very clear example of extra-curial punishment, as was the conduct towards Mr Allpass, a famous Crown appeal in respect of a man convicted of indecent assault of a child in the District Court, which was considered by the Court of Criminal Appeal in 1993 (Allpass (1993) A Crim A 561).

80. The ‘extra-curial punishment’ here is limited. It is not a highly significant matter, but it is a matter of some relevance to the assessment of the appropriate sentences to be imposed.

81. I have determined that there are ‘special circumstances’ pursuant to s 44 of the Act. In this matter partial accumulation of a sentence is itself a special circumstance that has been long held since the introduction of the Sentencing Act back in the late 1990s. There is also, in my view, a requirement for an extended period of supervision to assist the prisoner to adjust to the community. He will need, in my view, some assistance in relation to some of the aspects of psychological distress, if I could call it that, which has been evidenced particularly over the last four or five years.

82. I believe that I have taken into account all the relevant matters raised with me either directly or in the submissions of the parties.

83. Could you please stand up, Mr Ellis?

84. In relation to matters to which you pleaded guilty in respect to count 1 you are convicted. You are sentenced to a 9 months 2 weeks imprisonment. The starting point is 10 months. The discount of 5% is one-twentieth, which accords you a discount of approximately 2 weeks. To commence on 19 October 2017 and, as I personally calculated it, it expires on 2 August 2018. The sentence corrector will no doubt tell me if it should be 1 or 3 August.

85. In relation to count 2 you are also convicted. You will be sentenced to 6 months imprisonment by way of non-parole period to commence on 19 February 2018. That will expire on 18 August 2018.

86. In respect of that sentence I fix a balance of sentence of 12 months imprisonment that will expire on 18 August 2019.

87. You can take a seat. Any other matters, Mr Crown?

88. BARRETT: No.

89. HIS HONOUR: Any other matters, Mr Watts?

90. WATTS: That date which you have commenced the sentence from?

91. HIS HONOUR: Yes, 19 October. It will have to be 20 October, expiring thus on 3 August 2018; and thus the sentence in relation to count 2 to commence on 20 February 2018 expiring on 19 August 2018. The balance of sentence expiring on 19 August 2019. My apologies.

92. I direct that you be released to parole at the expiry of the non-parole period and be subject to the conditions of the supervision fixed for you by the Parole Authority.

93. You will have to go with the Corrective Services officers, who are here now.

Decision last updated: 13 November 2017